People v. Newman, 108102

• Decision Date: 21 February 2019
• Docket Number: 108102
• Citation: 169 A.D.3d 1157,94 N.Y.S.3d 400
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas L. NEWMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 1157
94 N.Y.S.3d 400

The PEOPLE of the State of New York, Respondent,
v.
Thomas L. NEWMAN, Appellant.

108102

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 16, 2019
Decided and Entered: February 21, 2019

94 N.Y.S.3d 402

Paul J. Connolly, Delmar, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.

Before: Garry, P.J., Clark, Mulvey, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

169 A.D.3d 1157

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered November 4, 2015, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the fourth degree and criminally using drug paraphernalia in the second degree.

In July 2014, City of Binghamton police officers executed a search warrant and discovered narcotics, cash and items associated with the sale of drugs in an apartment shared by defendant and his girlfriend. Defendant was charged with criminal possession of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the fourth degree and criminally using drug paraphernalia in the second degree. After a jury trial, defendant was convicted as charged and sentenced to concurrent prison terms, the longest of which was five years, followed by two years of postrelease supervision. Defendant appeals.

County Court properly denied defendant's motion to dismiss the indictment on the ground that the grand jury

94 N.Y.S.3d 403

proceeding was defective.¹ Our review of the grand jury minutes in the light of defendant's contentions reveals that the proceeding was conducted before the requisite number of grand jurors (see CPL 190.25[1] ; 210.35[2]; People v. Robinson, 156 A.D.3d 1123, 1128 n. 8, 67 N.Y.S.3d 709 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ), and the instructions were sufficient to permit the grand jury to make intelligent determinations as to whether crimes had been committed and whether there was legally sufficient evidence to establish the crimes' material elements (see

169 A.D.3d 1158

People v. Calbud, Inc., 49 N.Y.2d 389, 394–395, 426 N.Y.S.2d 238, 402 N.E.2d 1140 [1980] ; People v. Waddell, 78 A.D.3d 1325, 1326, 910 N.Y.S.2d 317 [2010], lv denied 16 N.Y.3d 837, 921 N.Y.S.2d 202, 946 N.E.2d 190 [2011] ). We find no basis upon which to conclude that the proceeding "fail[ed] to conform to the requirements of [CPL article 190] to such degree that the integrity thereof [was] impaired and prejudice to ... defendant [might] result" ( CPL 210.35[5] ; see People v. Malloy, 166 A.D.3d 1302, 1303, 88 N.Y.S.3d 652 [2018] ).

We reject defendant's claim that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence on the ground that the People failed to prove that he, rather than his girlfriend, possessed the contraband found in their apartment. The legal sufficiency argument is unpreserved, as defendant failed to raise it in his general trial motion to dismiss the indictment (see People v. Finch, 23 N.Y.3d 408, 422–423, 991 N.Y.S.2d 552, 15 N.E.3d 307 [2014] ). Nevertheless, "we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence" ( People v. Paige, 77 A.D.3d 1193, 1195, 911 N.Y.S.2d 176 [2010] [internal quotation marks and citations omitted], affd 16 N.Y.3d 816, 920 N.Y.S.2d 777, 945 N.E.2d 1028 [2011] ; see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

The testimony of the People's witnesses established that Thomas Brady, an investigator with the City of Binghamton police department and a member of the narcotics task force, applied in July 2014 for a warrant to search the persons of defendant and his girlfriend, as well as the apartment where they resided. Two other members of the narcotics task force surveilled defendant's apartment while waiting for the warrant to be signed. The officers saw defendant leave the residence and followed his car. When they were notified that the warrant had been signed, the officers pulled defendant over, informed him of the warrant, searched him and discovered no contraband.² Defendant was then taken to the police station, where Brady gave him Miranda warnings, told him that the warrant authorized the search of his residence and asked him if he would accompany police to the apartment to secure his dogs. Defendant agreed and, upon arriving at the apartment, gave a key to the SWAT team that was attempting to make entry. The team had difficulty with the key and used a battering ram to enter the apartment.

94 N.Y.S.3d 404

Defendant, his girlfriend and two children were held in the living room while police searched the residence. Possessions appearing to belong to a man and a woman were commingled

169 A.D.3d 1159

in a bedroom, with most of the man's possessions on the left side of the room and most of the woman's possessions on the right. In a recipe box on top of a dresser on the right side of the room, officers found a clear plastic capsule and three "knotted wraps" – described by Brady as corners of plastic bags that had been tied shut – containing what was later found to be crack cocaine. A letter addressed to defendant, another letter addressed to the girlfriend and two more knotted wraps – one containing what police suspected to be a cutting agent and one that proved to contain crack cocaine – were found in the dresser drawers. A larger plastic bag containing what was later identified as crack cocaine, packaged in 17 knotted wraps, was found in a woman's shoe in a closet on the right side of the room. An unlabeled pill bottle containing 180 oxycodone pills was found in another woman's shoe, and no related prescription was found. Police found $ 305 in cash in a woman's purse, and $ 2,100 was found in a safe on the left side of the bedroom, where men's clothing was primarily located.

A digital scale, another knotted wrap and a coffee filter containing a white chunky substance were found close together on top of the kitchen cabinets; later analysis revealed that the contents of the wrap and the filter were not controlled substances. On an outside porch, police found a ceramic plate containing a razor blade, a plastic bag and white residue that proved not to be a controlled substance. No pipes or other paraphernalia used to ingest drugs were found in the apartment. The officers testified that, during the search, the girlfriend told them that the three knotted wraps found in the recipe box belonged to her for personal use. They further testified that defendant asked whether the girlfriend would be permitted to stay with the children if he "claim[ed] everything," and was told that both would be arrested.

Brady testified that, based on his experience in narcotics investigations, drug users "very seldom" had large amounts of money and were usually found with small amounts of narcotics, empty packaging and implements for the use of drugs. In contrast, drug dealers did not ordinarily have implements for using drugs, and were likely to have "larger amounts of narcotics [and] ... scales, packaging material, razor blades, cutting agents, safes" and "large sums of currency." He testified that crack cocaine was often sold in wraps like those found in the apartment and that dealers often packaged multiple wraps of crack cocaine together in larger bags to make it easier to transport. He also testified that a street market existed in Broome County for pills such as oxycodone.

169 A.D.3d 1160

Defendant asserts that the People failed to prove beyond a reasonable doubt that he possessed any controlled substances, noting that no such substances were found on his person, that the controlled substances found in the apartment were located among the girlfriend's possessions on her side of the shared bedroom and that she provided police with the combination for the safe. Had the jury credited these arguments, a different verdict would not have been unreasonable; thus, this Court "must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citations omitted] ).

94 N.Y.S.3d 405

To demonstrate that defendant constructively possessed the narcotics, the People were required to show that he "exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found" ( People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] [internal quotation marks and citation...